Employers encouraged, but cautioned against celebration after Cari-Med ruling

Employers are relieved and encouraged that the constitutional aspect of the claim brought against Cari-Med Group by five employees in relation to the company's COVID-19 vaccination policy has not found favour with the court.

However, while there is some degree of comfort, Jamaica Employers' Federation (JEF) President David Wan notes that his members are still anxious to see what the next step by the claimants may yield.

At the same, Government senator and senior trade unionist Kavan Gayle is cautioning companies to hold the champagne.

Wan pointed out that the case cannot proceed to the Industrial Disputes Tribunal (IDT), given that there was no dismissal in the matter.

“Even if you're threatening to discharge, and you haven't officially discharged them, you can't go to the IDT,” he told the Jamaica Observer yesterday.

Leading up to the ruling, the JEF president had said he was concerned about the precedence which the ruling may establish for similar cases.

The five claimants Kadian Parkins, Tashana Davis, Sherine Hemmings, Racquel Robertson, and Kennesha Dale are employed to Kirk-FP Limited, a subsidiary of Cari-Med Group Limited.

Court documents state that on September 20, 2021 Cari-Med Group issued a written COVID-19 vaccination policy for all companies within its group to be implemented on October 4, 2021. The policy requires that all employees present proof of vaccination from COVID-19 or such other diseases as may be designated by Cari-Med by October 4, 2021 unless a reasonable accommodation is approved.

The policy further states that employees who fail to comply with its terms will be required to present a negative polymerase chain reaction test result every two weeks or 14 calendar days at the employee's expense from a Ministry of Health and Wellness-approved laboratory for COVID-19 testing.

On October 19, 2021 the five employees took the companies to court, claiming a breach and/or anticipatory breach of their respective employment contracts and violation of their constitutional rights under sections 13(3)(a), (b),(g) and (o)(ii) and (iii) of the Constitution of Jamaica.

However, last Friday the Supreme Court struck down the claim that the vaccination policy infringed on the employees' constitutional rights under the Fundamental Charter of Rights and Freedoms. The court concluded, instead, that the claimants' position in the claim was a contract issue “clad in the black tie of constitutional redress”.

“The court will dismiss the constitutional aspects of this claim as an abuse of process. It follows that the court will refuse to make a declaration in these that the constitutional rights of the claimants have been infringed,” the judgement said.

Wan asserted that if the claimants proceed on the contract issue he expects that a judge will weigh the case on the changes in the terms of their employment contracts, as well as the obligation of the employer to maintain a safe environment.

“It could go either way,” he stated.

Senator Gayle agreed.

“What I heard on Friday was employers saying 'Yes, we can now do this,' without reading the judgment. Whilst a judgment has been made, the evaluation of it still ought to be cautious, because the court has pointed it to another direction that has not made it definitive. It doesn't suggest that they [the claimants] can't make a claim using the employment law as a remedy,” Gayle stressed, suggesting that employers take an approach of encouraging and educating employees to get vaccinated.

He pointed out that a constitutional win would have been highly improbable, given the far-reaching implications it would have for the society.

“When you go to the level of the constitution, this is the highest degree, it's like you're going to heaven for a ruling. So the court is suggesting that you should have utilised any other statutory requirement in order to pursue your issue, and this is where it is suggesting to utilise the contract of employment,” he explained.

He said even this route could present its own complexities, given that these are contracts which are already in place, and that it would be easier for the defendants to establish a premise for COVID-19 vaccination in new contracts.

Sources close to the case say, overall, the claimants are in good spirits, and have received support from various people including in some segments of corporate Jamaica “who believe that this is not the way to treat employees during a pandemic”.

According to the sources, “Many are very disappointed at how this has gone down, especially since it involves a pregnant woman with a prior allergic reaction and whose doctor has said she cannot take the vaccine. So it is not even just an issue of choosing not to be vaccinated, but also not being able to be vaccinated (per the label), and having to either pay for testing or lose your salary. Quite a challenging situation for anyone to have to deal with.”

Speaking to expectations for any future cases such as this, the JEF president said a similar ruling would only apply if the employers sought to implement their vaccination policy in the same manner that Cari-Med did — that is, with consultation, culminating in the option to either vaccinate or get tested at specified intervals.

“So if a company gets up and says 'It's either you take this vaccine or you can't work here anymore', I still believe that it's going to be a contractual matter, I don't think it's going to be a constitutional matter, but another judge could think differently,” Wan said.

At the same time, he stressed that, in the absence of regulations, the court will set the tone for employer/employee relations in this matter. He said the Government, therefore, needs to establish a regulatory framework, specifically addressing pandemics and similar disasters, and actions that must be taken to ensure safety in the workplace.

The JEF president said, while Government may not be willing to lay down a vaccine mandate, it could mandate the option of periodic testing.

“I think the authorities might think it's too big a political price to pay to lay down mandatory vaccination,” he said.

WAN.. if the claimants proceedon the contract issue a judgewill weigh the case on thechanges in the terms of theiremployment contracts, as wellas the obligation of the employerto maintain a safe environment
BY ALPHEA SUMNER Senior staff reporter saundersa@jamaicaobserver.com

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